Terms and Conditions

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AWARENESS TERMS AND CONDITIONS

Effective Date: June 2011

Awareness, Inc., ("Awareness") offers the Awareness Application (as defined below) as a service over the Internet for use in connection with operating and maintaining content on and through social media communities.  These Terms and Conditions ("Terms and Conditions") provide the terms and conditions under which Customer (as defined below) is granted the right to access and use the Awareness Application, as ordered by Customer pursuant to an Order Form (as defined below).  Awareness and Customer are each referred to as a "Party" and together referred to as the "Parties".  These Terms and Conditions, together with any Order Form shall be considered the "Agreement" between Awareness and Customer with respect to Customer's use of the Awareness Application and any other services provided to Customer by Awareness related thereto

 BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS AN ORGANIZATION OR ENTITY, THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER MUST HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.

1. DEFINITIONSThe following terms, when used in these Terms and Conditions, shall have the following meanings:

"Awareness Application" means the on-demand social media marketing software and suite of applications in object code form specified in the Order Form.

"Awareness Services" means the support services provided by Awareness to Customer as set forth on the Awareness Support page or any other services otherwise ordered by Customer under an Order Form.

"Best Practice Communities" means those communities that have been developed and pre-fabricated by Awareness to contain best practices for its particular social medial marketing use, and that are ready-to-deploy and configure through the Awareness Application.

"Channels" means collectively, (i) each Best Practice Community; and (ii) any and all subsections of any third-party website or application, such as a group or area dedicated to specific subject matter, accessible through a Third Party Connector.

Channel Types" means connections through the Awareness Applications to (i) Best Practice Communities, and (ii) third party websites or applications via Third Party Connectors.

"Customer" means the entity identified as the "Customer" in the applicable Order Form.

"Customer Content" means any data, information or other content that is created in, collected by, or uploaded to the Awareness Application by Customer.

"Effective Date" means the date the Order Form is last signed by Awareness or Customer.

"Intellectual Property" means patents, copyrights, trademarks, trade names, trade secrets and all other intellectual property and intellectual property rights of any kind.

 "Licensed Channels" means up to the number of Channels designated on the Order Form.

"Order Form" means the Awareness' standard form for ordering licenses to the Awareness Application and Awareness Services that is executed by Awareness and Customer and expressly references these Terms and Conditions, including, any supplements or addenda thereto. Order Forms are hereby deemed incorporated herein.

"Password" means the user identification and password to the Awareness Application provided by Awareness to Customer.

"Third Party Connectors" means, connections to supported third-party websites or applications through the Awareness Application using public third party APIs.

2. ORDER FORM 2.1 Customer shall order licenses to the Awareness Application and any Awareness Services by delivering to Awareness a completed Order Form.  Awareness may accept or reject such Order Form in its discretion.   

 

3. LICENSES; RESTRICTIONS 

3.1 License.  Subject to the terms and conditions of this Agreement, Awareness hereby grants Customer a limited, non-exclusive and non-transferable right and license during the Term to access and use the supported Channel Types in the Awareness Application in connection with its management, collection and publishing of content on and through the Licensed Channels.  The number of Licensed Channels shall be as set forth on the Order Form.

3.2 New Modules. Unless otherwise provided for by an Order Form, the license set forth in Section 3.1 hereof does not include a license to or right to access or use any new modules, editions or applications, or any new versions of the Awareness Application which are separately priced and made available by Awareness as a separate product or as a new release edition of the Awareness Application.  In the event that Customer enters into a separate Order Form for any of the foregoing, then such new module, editions, application, or version will be deemed part of the Awareness Application for purposes of these Terms and Conditions.

3.3 License Restrictions.  Except as otherwise expressly provided herein, Customer shall not, and shall not permit or assist any third party to: (a) modify, translate, or create derivative works based on the Awareness Application or any documentation or other content made available by Awareness on or through the Awareness Application; (b) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Awareness Application; (c) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit the Awareness Application; (d) use the Awareness Application in a manner that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable local, state, federal or foreign law, treaty, regulation or convention ("Law"); (e) alter or reformat any documentation made available by Awareness or use or distribute the same other than in the format originally created and provided by Awareness; (f) remove or suppress any Intellectual Property notices from any documentation or that otherwise are displayed via the Awareness Application; (g) access or use the Awareness Application without an authorized Password; (h) permit any third party to use a Password that is intended for Customer; or (i) except as otherwise set forth in an Order Form, access or use the Awareness Application to provide marketing services on behalf of any third party or otherwise use of the Awareness Application on a timeshare or service bureau basis.

3.4 Ownership; Reservation of Rights.  Awareness retains sole and exclusive ownership of all right, title, and interest in and to all Intellectual Property relating to or embodied in the Awareness Application and related documentation (and all derivative works of or modifications or improvements to any of the foregoing). Awareness reserves the right to discontinue developing, producing, licensing, distributing or supporting the Awareness Application at any time upon reasonable written notice to Customer, provided that the Awareness Application maintains the functionality for the Awareness Application that exists as of the Effective Date.  Awareness reserves all rights not expressly granted herein, including the right to license, and provide marketing services through the use of, the Awareness Application to any third party.

3.5 Passwords.  Customer is responsible for the confidentiality of any and all Passwords.  Customer shall immediately notify Awareness in writing of any unauthorized use of the Awareness Application, a Password or any other breach of security.

3.6 Feedback.  Customer may from time to time provide suggestions, comments or other feedback to Awareness with respect to the Awareness Application ("Feedback").  Awareness shall own all right, title and interest in and to the Feedback, all developments based upon such Feedback and all Intellectual Property in and to the foregoing, and will have full discretion to determine whether or not to implement any such Feedback.

4. PROVISION OF THE APPLICATION

4.1 Customer Conduct and Guidelines.  Customer shall be responsible for the collection, accuracy, currency, quality, legality, completeness and use of information and data that it uses in connection with the Awareness Application and for the content of all communications and other Customer Content while using the Awareness Application.

4.2 Compliance with Laws.  Customer shall comply with all Laws applicable to Customer in connection with its use of the Awareness Application and any and all Customer Content.

4.3 Security.  Awareness shall use commercially reasonable efforts to ensure that (a) Customer Content is maintained accurately and safeguarded; (b) reasonable technical and physical controls are implemented to protect Customer Content against unauthorized destruction, loss, alteration and disclosure to third parties; and (c) the Awareness Application is hosted by and maintained with reputable third party Internet service providers and in reputable co-location facilities.

4.4 Data Transmission.  Customer acknowledges that Customer Content may be accessed by unauthorized third parties when communicated between Customer and Awareness by means of the Internet, other network communication facilities, telephone or other electronic means.  Customer agrees to use software produced by third parties, including but not limited to "browser" software, that supports a data security protocol compatible with the protocol used by Awareness.  Awareness will promptly notify Customer of any compromise of data transmitted across computer networks or telecommunications facilities of which Awareness becomes aware.

4.5 Customer Content.  (a) Customer hereby grants to Awareness a non-exclusive, royalty-free license during the Term to copy, use, transmit and digitally display all Customer Content as necessary to provide the Awareness Application and Awareness Services.  Customer hereby represents and warrants to Awareness that Customer has obtained the necessary licenses or permissions to display Customer Content on the Licensed Channels and for Awareness to copy use, transmit and digitally display the Customer Content, as necessary for the provision of the Awareness Application and Awareness Services.  (b) Customer shall cooperate in good faith with Awareness at all times to ensure that the notice and take down procedures of the Digital Millennium Copyright Act ("DMCA") are appropriately implemented with respect to Customer Content stored or hosted by or on behalf of Awareness in connection with the Awareness Application.  Customer shall prominently display on its website a DMCA policy that provides explicit instructions enabling copyright owners to request removal of copyright infringing materials posted to Customer's Website in accordance with the DMCA and shall comply with such policy at all times.  Awareness shall have the right, upon receipt by it of any such notice, to remove or block access to the materials identified in such notice. 5.

PAYMENT; RECORDS 

5.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder.  Except as otherwise provided in the Order Forms, all (a) fees are quoted in U.S. currency and shall be payable in U.S Dollars; (b) the number of Licensed Channels cannot be decreased during the relevant license term stated on the Order Form; and (c) fees are non-refundable, non-creditable and there shall be no right of set-off therefor.  Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof.  Customer will provide Awareness with valid and updated credit card information or with a valid purchase order or equivalent documentation.  If Customer provides Awareness with credit card information, Customer authorizes Awareness to charge such credit card for all fees set forth on the Order Form on the frequency stated therein.  Unless otherwise stated on the Order Form, invoices charges are due thirty (30) days from the date of the applicable invoice.  Customer is responsible for providing Awareness with complete and accurate billing and contact information and any updates or changes thereto as necessary.

5.2 Taxes.  Customer shall be responsible for, and all amounts payable by Customer to Awareness hereunder are exclusive of, any and all sales, use, value added and other taxes or duties, however designated (other taxes based on Awareness' income).  Customer shall reimburse Awareness for any such taxes paid by Awareness on behalf of Customer, and Customer will not withhold any such taxes from any amounts due Awareness.

5.3 Suspension of Access to Awareness Application.  If Customer's payments under any Order Form are thirty (30) days or more overdue or Customer breaches any material term or condition of this Agreement, in addition to any other rights and remedies hereunder, Awareness shall have the right to suspend Customer's access to the Awareness Application under such Order Form without liability to Awareness until such account is paid in full or such Customer effects a cure of any such breach, as applicable.

6. AWARENESS SERVICES; SUPPORT; TRAINING

6.1 Support. Awareness shall provide Support to Customer as set forth in on the Awareness Support page, found here.

6.2 Services. Except for the standard set-up, configuration and training services outlined in the initial Order Form, any and all implementation, consulting, programming or other professional services ordered by Customer under an Order Form shall be subject to all of the terms and conditions set forth therein.  An Order Form for Services shall include an addendum or supplement describing the services to be provided.

7. CONFIDENTIALITY 

7.1 Confidential Information.  For purposes hereof, "Confidential Information" means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the "Disclosing Party") that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the "Receiving Party"); provided, however, that (a)  reports and/or information related to or regarding a Disclosing Party's business plans, strategies, technology, customers, prospective customers, billing records and products or services shall be deemed Confidential Information of the Disclosing Party; (b) any documentation and other information relating to the Awareness Application, including, without limitation, any information related to beta tests for new components of the Awareness Application, shall be deemed Confidential Information of Awareness; and (c) the terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties, in each case even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence.  Information will not be deemed Confidential Information hereunder if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party.

7.2 Confidentiality Obligations.  The Receiving Party agrees not to use the Confidential Information of the Disclosing Party for any purposes except as necessary to fulfill its obligations under this Agreement.  The Receiving Party agrees not to disclose the Confidential Information of the Disclosing Party to any person or entity, except for (a) its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of its rights and performance of its obligations under this Agreement and (b) investors and prospective acquirers and professional advisers; provided that such employees and consultants, investors and prospective acquirers are bound by written agreements or, in the case of professional advisers, such advisers are bound by ethical duties, in each case respecting such Confidential Information in accordance with the terms of this Section 7.  The Receiving Party agrees that it shall treat the Disclosing Party's Confidential Information with the same degree of care as it accords to its own similar Confidential Information, provided that in no event shall the Receiving Party exercise less than reasonable care.  The Receiving Party agrees to promptly advise the Disclosing Party in writing of any misappropriation or misuse by any person of the Disclosing Party's Confidential Information of which the Receiving Party may become aware. Upon termination or expiration of this Agreement, any materials or Confidential Information of Disclosing Party which are furnished to the Receiving Party, and all copies thereof will, at the Disclosing Party's option, either be: (i) promptly returned to the Disclosing Party; or (ii) destroyed by the Receiving Party (with the Receiving Party providing written certification of such destruction). If the Receiving Party is compelled by Law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

8. REPRESENTATIONS; WARRANTIES; EXCLUSIONS; AVAILABILITY

8.1 Representations and Warranties.  Each Party represents and warrants to the other Party that (a) it has the corporate authority to enter into this Agreement and to perform its obligations hereunder, (b) this Agreement shall be enforceable against each such Party in accordance with their terms; and (c) it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.

8.2 Limited Warranty.  Subject to Customer's compliance with the terms and conditions hereof, Awareness warrants to Customer that (a) the Awareness Application will perform in substantial conformity with then-current written specifications and related documentation made available by Awareness to Customer; and (b) Awareness warrants that all Awareness Services will be performed in a professional manner in accordance with prevailing industry standards.

8.3 Exclusions.  CUSTOMER UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, AWARENESS MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE AWARENESS APPLICATION, DOCUMENTATION, AWARENESS SUPPORT, OR ANY OTHER MATERIALS, PRODUCTS OR SERVICES PROVIDED HEREUNDER, AND SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,  NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF ANY KNOWLEDGE OF CUSTOMER'S PARTICULAR NEEDS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AWARENESS DOES NOT WARRANT THAT THE FEATURES OR FUNCTIONS OF THE AWARENESS APPLICATION WILL MEET CUSTOMER'S REQUIREMENTS, THAT CUSTOMER'S ACCESS OR USE OF THE AWARENESS APPLICATION OR ANY THIRD PARTY CONNECTORS, WEBSITE OR APPLICATION WILL BE UNINTERRUPTED, OR THAT OPERATION OF ANY OF THE FOREGOING WILL BE ERROR FREE.

8.4   Availability.  Customer's access to the Awareness Application is via the Internet.  Awareness represents and warrants that the Awareness Application will be available at least 99.5% of the time.  Periods of unavailability due to the following shall be excluded for the purpose of calculating the availability of the Awareness Application: (a) scheduled maintenance as set forth on the Awareness Support page [include hyperlink here] (b) events contemplated by Section 12.11; (c) problems with any of Customer's internal systems, networks, software, hardware or other equipment; (d) any problems associated with telecom or network services of any Internet service provider or telecommunications carrier used by Awareness or Customer; and (e) problems with any Third Party Connectors.   Awareness shall be entitled to re-schedule maintenance windows from time to time, and shall use reasonable efforts to provide Customer with notice at least twenty-four (24) hours in advance of any change a scheduled maintenance window.  As its exclusive obligation for any failure to meet the availability standard and as Customer's exclusive remedy, Awareness will grant to Customer a credit equal to 1% of the monthly charge for every hour of unavailability greater than 4 hours in a given calendar month, not to exceed 100% of the monthly charge in any given calendar month.  Such credit shall be applied against fees payable in subsequent months.

9. INDEMNIFICATION 

9.1 Indemnification by Awareness.  Awareness shall defend at its expense any claim, suit or proceeding (each, a "Claim") brought against Customer by any third party to the extent such Claim is based upon a claim that the Awareness Application infringes such third party's rights under any United States patent, trademark, copyright or misappropriates such third party's rights under trade secret enforceable in the United States, and Awareness shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer (a) promptly notifies Awareness in writing of such Claim; (b) promptly gives Awareness the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Awareness' own choosing (provided that Customer shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (c) gives assistance and full cooperation for the defense of same.  If the Awareness Application, or Awareness' provision of the Awareness Services, constitutes or, in Awareness' sole opinion, might be held to constitute infringement or misappropriation as set forth above, Awareness may, at its option, (i) modify the Awareness Application or Awareness Support, as applicable, so as to avoid infringement or misappropriation; (ii) procure the right for Customer to continue to use the Awareness Application; or (iii) terminate any Order Form and/or this Agreement and provide to Customer a refund of the prorated fees for the then current term.

9.2 Exclusions.  The foregoing indemnity in Section 9.1 shall not apply to any Claim based upon or arising from (a) any use of the Awareness Application outside the scope of this Agreement; (b) any use of the Awareness Application in a manner for which it was not designed; or (c) any use of the Awareness Application with equipment, hardware, software or services not supplied by Awareness or in a manner inconsistent with Awareness' instructions.  This Section 9 represents the sole and exclusive remedy of Customer and the entire liability and obligation of Awareness with respect to infringement, or claims of infringement or misappropriation of any Intellectual Property relating to Customer's use of the Awareness Application.

9.3 Indemnification by Customer.  Customer shall indemnify, defend and hold Awareness harmless from any losses, liabilities, damages, costs and expenses (inclusive of Awareness' reasonable attorneys' fees) arising from any Claims resulting from (a) Customer's use of the Awareness Application (except to the extent covered by Awareness' indemnification of Customer pursuant to Section 9.1) or (b) any breach of this Agreement by Customer.  Awareness shall have the right to participate, at its expense, in the defense of any claim covered under this Section 9.3 with counsel of its own choosing.

10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL AWARENESS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF AWARENESS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9.1, AWARENESS WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PURSUANT TO THE APPLICABLE ORDER FORM THAT AWARENESS HAS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE APPLICABLE CLAIM AROSE.  MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY'S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.  No action against either Party arising out of this Agreement may be brought by the other Party more than one year after the cause of action has arisen.

11. TERM; TERMINATION

  11.1 Term.  This Agreement shall commence on the date the first Order Form is executed by both of the parties.  Unless otherwise stated in the applicable Order Form, all licenses shall automatically renew for additional period equal to the expiring license term or, unless one Party notifies the other of its intention not to renew by providing twenty (20) days' prior written notice to the other Party (the initial term, together with any renewal period, the "Term").  The pricing during any renewal term shall be the same as during the prior term unless Awareness has given you written notice of a price increase at least twenty (20) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.  These Terms and Conditions will continue in effect for so long as an Order Form is in effect.

11.2 Termination for Cause.  The non-breaching Party may terminate an Order Form or this Agreement, as applicable, if the other Party breaches any provision of an Order Form or this Agreement, as applicable, and fails to cure such breach within thirty (30) days following written notice of such breach.

11.3 Termination by Awareness.  Awareness may terminate this Agreement at Awareness' discretion immediately on written notice if: (a) Customer makes any unauthorized use or disclosure of Awareness' Confidential Information or Awareness Intellectual Property, or materially breaches any applicable Law, including any privacy or data protection Law; or (b) if Customer is acquired by, merges with, or otherwise experiences a change of control by an entity which Awareness considers a competitive threat.

11.4 Effects of Termination.  Upon any expiration or termination of an Order Form or this Agreement: (a) Customer shall return all documentation and other materials provided thereunder or hereunder, as applicable, within thirty (30) days and all such materials will remain the property of Awareness; (b) Customer's right to access the Awareness Application shall terminate; and (c) Awareness shall no longer have any obligation to perform under such Order Form or this Agreement, as applicable.  For clarity, either Party may terminate an Order Form as permitted herein without terminating other Order Forms or this Agreement. 

11.5 No Liability for Termination.  In the event of expiration or termination of an Order Form or this Agreement, each Party shall not be liable to the other Party, solely because of such expiration or termination, for compensation, reimbursement damages or payments on account of the loss of prospective profits or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of the other Party.  Termination will not, however, relieve either Party of obligations incurred prior to or apart from expiration or termination of and Order Form or this Agreement, as applicable.

11.6 Return of Customer Content. Upon written request by Customer made within thirty (30) days after the effective date of any expiration or termination of  this Agreement, Awareness will provide Customer or Customer with temporary access to the Awareness Application so that Customer can retrieve the Customer Content.  After such thirty (30) day period, Awareness shall have no obligation to maintain or provide any data provided by any Customer and shall thereafter, unless legally prohibited, have the right to delete all such data in the Awareness Application or otherwise in its possession or control.  

11.7 Surviving provisions. This Section 11.7 and Sections  3.4, 3.6, 5, 7, 9, 10, 11.4, 11.5, 11.6 and 12 shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement and until they are satisfied in full or by their nature expire.

12. GENERAL  12.1 Publicity. Neither Party will make any separate public announcement regarding this Agreement or the terms hereof without the prior written consent of the other Party.  Notwithstanding the foregoing, Awareness may (a) use Customer's name and trademarks, and identify Customer, in any general listing of licensees of the Awareness Application; (b) use Customer's name in connection with proposals to third parties; and (c) otherwise refer to Customer in print or electronic form for marketing, reference and other business purposes.

12.2 Relationship.  The relationship of Awareness and Customer shall be that of independent contractors.  There is no relationship of agency, partnership, joint venture, employment or franchise between the Parties.  Neither Party has the authority to bind the other or to incur any obligation on behalf of the other Party or to represent itself as the other's agent or in any way that might result in confusion as to the fact that the Parties are separate and distinct entities.  Without limitation, Customer shall not make any representations, warranties or covenants of any kind on behalf of Awareness.

12.3 No Assignment.  Neither Party may assign its rights or obligations under this Agreement without the written consent of the other Party, except that either Party (the "Assigning Party") may assign this Agreement without the written consent of other Party (the "Non-Assigning Party") to a corporation or other business entity succeeding to all or substantially all the assets and business of the Assigning Party to which this Agreement relates by merger or purchase, provided that such corporation or other business entity expressly assumes, in a writing delivered to the Non-Assigning Party, all of the terms and conditions of this Agreement.  In addition, Awareness may assign this Agreement and its rights and obligations hereunder (whether by operation of law, contract, or otherwise) without Customer's consent to any individual or business entity controlling, controlled by or under common control with Awareness.  Any purported assignment in violation of this Section 12.3 shall be null and void and a breach of this Agreement.  This Agreement shall inure to the benefit of and be binding upon each Party and its successors and permitted assigns.

12.4 Amendment; Waiver; Remedies.  No order form may be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. Awareness may amend or modify these Terms and Conditions at any time. If Awareness does make such a material amendment or modification to these Terms and Conditions, it will notify Customer via email prior to the effective date of such amendment or modification. Customer’s use of the Awareness Application after the effective date of such amendment or modification shall constitute acceptance of such amendment or modification. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver.  Any such waiver shall be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and shall not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise.

12.5 Counterparts.  Any Order Form may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute but one and the same instrument.

12.6 Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable Law.  In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.

12.7 Governing Law, Jurisdiction.  All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts, without regard to its rules of conflict of Laws.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts, and of the United States of America located in the Commonwealth of Massachusetts (the "Massachusetts Courts") for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable Parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.  The Parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.8 Notices.  All notices under or related to this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or electronic mail; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.  All communications will be sent to the addresses set forth on the Order Form or such other addresses designated pursuant to this Section 12.8.  Notices to Awareness shall be addressed to Awareness' CFO.  Notices to the Customer shall be addressed to Customer's signatory unless otherwise designated.

12.9 Entire Agreement.  This Agreement, including all Order Forms, constitutes the entire agreement between the Parties regarding the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  In the event of an inconsistency between an Order Form and these Terms and Conditions, the terms of the Order Form shall govern.

12.10 Interpretation.  Headings contained in these Terms and Conditions are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose and shall not in any way define or affect the meaning or interpretation of any provision of this Agreement.  As used in this Agreement, "including" means "including but not limited to". 12.11 Force Majeure.  No Party shall have any liability under this Agreement for such Party's failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party's control; provided that financial inability in and of itself shall not be excused under this Section 12.11.

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